Why, then, he asked, "should the confiscation of British property be deemed less just in the event of an American triumph?" Property and its disposition is not a natural right, but the "creature of civil society, and subject in all respects to the disposition and control of civil institutions." Even if "an individual has not the power of extinguishing his debts," still "the community to which he belongs ... may ... upon principles of public policy, prevent his creditors from recovering them." The ownership and control of property "is the offspring of the social state; not the incident of a state of nature. But the Revolution did not reduce the inhabitants of America to a state of nature; and if it did, the plaintiff's claim would be at an end." Virginia was within her rights when she confiscated these debts.
As an independent nation Virginia could do as she liked, declared Marshall. Legally, then, at the time of the Treaty of Peace in 1783, "the defendant owed nothing to the plaintiff." Did the treaty revive the debt thus extinguished? No: For the treaty provides "that creditors on either side shall meet with no lawful impediment to the recovery" of their debts. Who are the creditors? "There cannot be a creditor where there is not a debt; and the British debts were extinguished by the act of confiscation," which was entirely legal.
Plainly, then, argued Marshall, the treaty "must be construed with reference to those creditors" whose debts had not been extinguished by the sequestration laws. There were cases of such debts and it was to these only that the treaty applied. The Virginia law must have been known to the commissioners who made the treaty; and it was unthinkable that they should attempt to repeal those laws in the treaty without using plain words to that effect.
Such is an outline of Marshall's argument, as inaccurately and defectively reported.[502]
Cold and dry as it appears in the reporter's notes, Marshall's address to the Supreme Court made a tremendous impression on all who heard it. When he left the court-room, he was followed by admiring crowds. The ablest public men at the Capital were watching Marshall narrowly and these particularly were captivated by his argument. "His head is one of the best organized of any one that I have known," writes the keenly observant King, a year later, in giving to Pinckney his estimate of Marshall. "This I say from general Reputation, and more satisfactorily from an Argument that I heard him deliver before the fed'l Court at Philadelphia."[503] King's judgment of Marshall's intellectual strength was that generally held.